Opinion
DOCKET NO. A-0547-12T2
09-11-2014
CATHERINE A. SEIFERT, Plaintiff-Respondent, v. RICHARD M. LEVINE, Defendant-Appellant.
Keith N. Biebelberg argued the cause for appellant (Biebelberg & Martin, attorneys; Mr. Biebelberg, on the brief; Jay M. Nimaroff, on the brief). Alan R. Ackerman argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Koblitz and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1347-10. Keith N. Biebelberg argued the cause for appellant (Biebelberg & Martin, attorneys; Mr. Biebelberg, on the brief; Jay M. Nimaroff, on the brief). Alan R. Ackerman argued the cause for respondent. PER CURIAM
Defendant appeals from those provisions of a judgment of divorce that denied him alimony, counsel fees, and the equitable distribution of some of the assets, as well as the allocation of debt. He also appeals the amount he must pay in child support, contending he does not earn the income imputed to him by the trial court. We affirm.
I
The parties were married on September 1, 1994 and had one child, born in 1995. Plaintiff filed a complaint for divorce on January 5, 2010; following a trial, the court entered a judgment of divorce, on May 15, 2012.
At the time of the marriage, both parties worked as financial analysts for Standard & Poor's. Both have college degrees but defendant also has an M.B.A. with a concentration in finance. At the beginning of the marriage, plaintiff earned approximately $70,000 and defendant $87,000. After their child was born, the parties agreed plaintiff would be the primary caretaker and have a work schedule to enable her to carry out her caretaking responsibilities. It was also understood defendant would try to obtain a higher paying position, even if the position carried the risk of being short-lived.
In 1997, defendant landed a job with Daiwa America Securities, Inc. as a lead financial services analyst. His starting salary was $143,286, plus a bonus. For reasons unrelated to his performance, defendant lost this job in 2002. He was unable to find another position until October 2004, when he commenced working as a financial analyst at Stanford Financial Company for $150,000 per year. He was terminated from this position in June 2005. But for working at Macy's as a retail sales clerk for two months in 2010, defendant was unemployed for the remainder of the marriage. At the time of the parties' divorce in 2012, defendant was sixty-one years of age.
At trial, defendant maintained he could not earn more than $30,000 annually and sought $60,000 a year in permanent alimony. Defendant's testimony about his efforts to find a job after June 2005 was vague and non-specific. He testified he "contacted people he knew," made "a lot of" telephone calls, and sent his resume to an unspecified number of potential employers, although he did mention he sent his resume to 200 of the largest broker dealers groups in New York City. Although there are fifty executive recruiters that service Wall Street, defendant engaged the services of only one, who defendant contacted just every three or four months. The recruiter testified he receives only eight to ten requests a year from prospective employers seeking the kind of position for which defendant was qualified.
Plaintiff testified defendant sought only positions that paid between $300,000 and $700,000 annually and for which he was not qualified. She persistently urged defendant to consider positions that were lower in pay and attainable, but he ignored her admonitions. Defendant acknowledged plaintiff pushed him to seek lower paying jobs, but he resisted, claiming plaintiff threatened to leave the marriage unless he made more money than she did. Defendant did not say what plaintiff's income was when she made these threats.
Plaintiff, who by the time of trial was a recruiter for Standard & Poor's, testified that the market was strong for analysts with defendant's background. Even after the downturn in the economy that commenced in 2008, there continued to be a demand for the kind of skills defendant possessed. As an example of the defendant's lackluster attempt to find employment, just a few months before the trial, plaintiff checked a website widely used in the financial industry, on which prospective employees post and prospective employers view resumes. She discovered defendant had not "updated" his resume for over a year; "updating" means reposting one's resume so that it appears at or very close to the top of the list of resumes, where employers concentrate their search. To stay at or close to the top of the list, reposting needs to be done every week.
Defendant did not call a vocational expert to support his claim there were few or no jobs for which he was eligible, but the plaintiff did. The plaintiff's expert, who met with defendant for over two hours in September 2010, testified defendant's job search was "vague and undefined," and commented it was "unrealistic" that one with an M.B.A. had been unable to find a job in five years.
II
Defendant's primary argument on appeal is that the trial court erred in denying him alimony. In a lengthy oral opinion, the court addressed the factors in the alimony and equitable distribution statutes. See N.J.S.A. 2A:34-23(b), 23.1. In evaluating those factors in the statutes that concern the parties' earning capacities and employability, the trial court found the testimony and evidence exposed that defendant, who is highly educated and extensively experienced in the financial industry, not only failed to make a good faith effort to find employment, but also actually refused to find reasonable employment and therefore was "willfully underemployed." The court denied defendant's request for alimony because of his failure to prove he could not find suitable employment and thus required spousal support. We add that none of the evidence indicated that the marriage, including the caretaking responsibilities of the child, impaired defendant's ability to become employed.
The scope of our review is limited. A trial court's findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[A]n appellate court should not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (internal quotation marks omitted). Such deference is particularly appropriate when the evidence is mostly testimonial and involves questions of credibility. Ibid. "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (internal quotation marks omitted).
Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Generally, we reverse only when our review discerns the trial court's findings "'are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, 65 N.J. 474, 483-84 (1974)).
We are satisfied the trial court's findings and conclusions regarding alimony are supported by the evidence and are not the product of abuse of discretion. Having the opportunity to observe the witnesses as they testified, the court was free to resolve any conflicting testimony by determining whom it found the more credible as a witness gave testimony on any given factual issue. There was ample evidence to support the court's finding that defendant, who had the burden of proving he was entitled to alimony, see Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992), did not make a good faith effort to secure employment after 2005.
Defendant also contends the trial court erred by imputing an annual income of $150,000 for the purpose of calculating child support. The court imputed income at $150,000 because, among other things, that was what he earned when last employed in his field. The court reasoned that had defendant continued working, he would have been earning at least such amount at the time of trial.
Defendant was ordered to pay $169 per week in child support.
Plaintiff's employability expert testified, over defendant's objection, that she had been told by recruiters in the financial industry that a person with defendant's credentials could earn between $150,000 to $200,000 annually. We agree with defendant that such testimony was inadmissible hearsay. Further, there was no foundation laid for the admission of such testimony under N.J.R.E. 703, but even if there had been, the testimony would not have been substantive evidence establishing the truth of the statement. State v. Farthing, 331 N.J. Super. 58, 77 (App. Div.), certif. denied, 165 N.J. 530 (2000). The admission of the testimony was harmless, however, as the trial court did not rely upon such evidence.
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We reject defendant's contention the court committed error. A court may impute income to either spouse if that spouse is voluntarily unemployed or underemployed without just cause. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). If the court finds that there is no just cause for the parent remaining unemployed or underemployed, the Child Support Guidelines provide that the court may impute income based on the parent's former income at that person's usual or former occupation. Pressler & Verniero, Current N . J . Court Rules, Appendix IX-A to R. 5:6A at 2589 (2014). We note that defendant's age may become relevant to his ability to find work in the future. See Lissner v . Marburger, 394 N . J . Super . 393, 403 (Ch. Div. 2007) (rejecting a father's application to reduce child support due to retirement at age sixty-one and indicating that sixty-five has become the presumptive age of retirement).
We have considered each of the remaining contentions raised by the parties. In light of the record and the applicable legal principles, we conclude the remaining contentions are without merit and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). The factual findings and legal conclusions of the trial court are supported by competent evidence in the record. Rova Farms, supra, 65 N.J. at 484.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION